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"And ye shall know the truth, and the truth shall make you free." - John 8:32
WEBCommentary Contributor
Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  December 29, 2006
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Duke Case: Say It Ain't So, Joe!

"Joe" is Joseph Cheshire V, lead attorney for David Evans, a co-captain of the 2005-2006 Duke University Men's Lacrosse Team, the last of the Duke Three to be indicted and the first of them to publicly proclaim his innocence of the heinous charges wrongfully brought against each of them at the behest of ex-convict stripper Crystal Gail Mangum by a grand jury manipulated, misinformed and misled by despicable Durham County, North Carolina District Attorney Michael B. Nifong, the latest master of racist politics.

Cash Michaels is a North Carolina journalist and television commentator who has covered the Duke case not only locally, but for America's Black Press. (The Wilmington Journal is part ofthe Black Press/USA Network.)

In his latest article on the Duke case, "Duke Case--Rape Charges Dropped, As Defense Distorts Facts," Mr. Michaels stated:

"Attorney Joseph Cheshire, in a Dec. 22 written response to the Carolinian/Wilmington Journal Newspapers on-the-record queries about what evidence he has proving the Black community would 'take action' against Black jurors hearing the case, replied:

'First, please understand that the Defendants and their lawyers speak for themselves and not for any bloggers, reporters, or other commentators. Michael Gaynor has no more to do with the defense of these innocent young men than you have to do with the prosecution of them. You are both commentators.'"

Woe, Joe!

First, Mr. Nifong and Mr. Cheshire are both members in good standing of the North Carolina bar, but I never insulted Mr. Cheshire by equatinghim with Mr. Nifong.

Second, denigrating the role of pro-Duke Three bloggers, reporters and other commentators (of which I am one) may be a welcome sign that the end of the ordeal is near, but it is not deserved. I have not asked any of the defendants or any of their lawyers to speak for me, and I don't know if any other blogger, reporter or other commentator having done so. Rather, I have written and spoken in support of the Three, because I have believed in their innocence, and other bloggers, reporters and commentators have done the same.

Third, it would have been fair for Mr. Cheshire to write that Michael Gaynor (and other pro-Duke Three) bloggers, reporters and commentators are not legal representatives or agents of any of the Three. BUT,"Michael Gaynor has no more to do with the defense of these innocent young men than [Mr. Michaels] hasto do with the prosecution of them" is a senseless provocation that Mr. Cheshire should have realized is neither true nor in his client's best interests and therefore refrained from writing for Mr. Michaels to quote in one of his articles.

When Mr. Michaels was commiserating with and supporting Ms. Mangum as a victim, Michael Gaynor was calling on the media to refer to her as an accuser instead of a victim and a stripper instead of an exotic dancer and asking whether she was a victim or a victimizer.

Mr. Michaels was enabling Mr. Nifong, while Michael Gaynor was with the then small but happily now much larger group that suspected Mr. Nifong and Ms. Mangum were the opportunistic villains andReade Seligmann, Collin Finnerty and David Evans were being sacrificed on the altar of Mr. Nifong's personal and political ambition, with the mainstream media pouring fuel on the fire because the sensational story fit ever so nicely the agenda of The New York Times and its allies and syncophants.

Discovery has done wonders for Mr. Cheshire in the Duke case, because the truth is on the side of the Three.

Discovery on whether "Michael Gaynor has no more to do with the defense of these innocent young men than [Mr. Michaels] hasto do with the prosecution of them" is not the kind of discovery Mr. Cheshire would find so pleasing.

Third,Michael Gaynor did not purport to speak on behalf of any of the defendants or any of their lawyers.

Michael Gaynor irritated Mr. Michaels (among other ways) by writing in support of the joint defense motion for a change of venue if there is to be a trial in the Duke case.

Mr. Cheshire apparently allowed himself to be goaded by Mr. Michaels into making a gratuitous comment equating Michael Gaynor and Mr. Michaels.

That said, Mr. Cheshire is right and Mr. Michaels wrong about just about everything on which they disagree, including the need for a change of venue in the event of a trial of the Duke case.

After reading Fox News' Greta van Susteren's report on how Yolanda Hayes backed out of an appearance on "On the Record," hosted by Ms. van Susteren, I wrote an article titled "Duke Case: Greta Highlights Need to Change Venue." I opined that in backing out Ms. Hayes had made it "even clearer that a change of venue is required if there is to be a trial" and concluded: "If a fact witness is so easily intimidated, imagine what pressure to convict would be put on jurors, especially black jurors!"

Durham County, North Carolina is NOT a place where the defendants in the Duke case would be sure to get a fair trial.

In its May 1, 2006 issue Newsweek reported the commendably candid, but otherwise contemptible, attitude of North Carolina Central State student Chan Hall:Duke students should be prosecuted "whether it [the alleged kidnapping and gang rape] happened or not," as "justice for things that happened in the past."

Mr. Hall, then 22, who is black, apparently believed that some white Duke lacrosse players should be sacrificed to make up for past injustices to "the black community," whethertheir accuser, Crystal Gail Mangum, told the truth or lied.

NCCU Law Professor Irving Joyner, who is monitoring the Duke case for the North Carolina NAACP, yearned months agofor a jury trial of the Duke case in Durham. He believed that a Durham jury may convict when jurors elsewhere would not: "This case originated in Durham and should be tried here"and Mr. Nifong "still has a viable shot at victory before a jury in Durham."

Professor Joyner explainedwhy he specified a "Durham" jury as giving Mr. Nifong a chance to win: "A Durham jury may see things differently than would an Orange or Wake County jury because the Durham jury will probably have more African-Americans on it than would be involved in most other counties in North Carolina."

But,a verdict should not depend upon the county in which the case is tried or the color of the accuser, the accused, the prosecutor or the jurors.

I so wrote last November, in "Duke Case: 'Community Justice' Is Trumping Individual Justice."

Ironically, I followed up later in November, in "Duke Case: Jury Nullification Nonsense," a defense of Mr. Cheshire against the criticism of Duke senior Shadee Malaklou.

I wrote in part:

"Ms. Malaklou boldly challenged Joseph B. Cheshire, a distinguished lawyer representing one of the Duke Three, in a guest column on the Duke case published in The Herald-Sununder thetitle 'Lacrosse players far from innocent' on November 19.

"Ms. Malaklou's 'thinking' demonstrates the danger that jury nullification will hang the Duke case if it is tried instead of dismissed.

"Ms. Malaklou, now of the Wonderland that is Durham, North Carolina, islike Humpty Dumpty inAlice's Wonderland: she blithely misuses words likeangry, innocentand inaccuracy to promote her warped view.

"'When I use a word,' Humpty Dumpty said, in a rather scornful tone, 'it means just what I choose it to mean -- neither more nor less.'

"'The question is,' said Alice, 'whether you can make words mean so many different things.'

"'The question is,' said Humpty Dumpty, 'which is to be master -- that's all.'

"Ms. Malaklou would be master of many words. Examples: her insistence that Mr. Cheshire used 'angry words'; her chargethat the Duke Three are not 'innocent'; and her description of the problems with Mr. Nifong's investigation in the Duke case as 'inaccuracies.'

"Perhaps Ms. Malaklouwould benefit from takinga psychology course in her last semester at Duke and studying 'projection.' She appearsto be angry, not innocent and inaccurate.

"Ms. Malaklou: 'Joseph B. Cheshire's Nov. 11 angry words did not go unnoticed. For every smug remark by a smug, white attorney representing a smug, white lacrosse player, there is a woman cringing. This time, that woman was me.'

"I'd say that Ms. Malaklou is the smug, or highly self-satisfied, one.

"What did Mr. Cheshire write?

"'I understand the need for lawyers whose livelihood and clients' fates are often governed by the whim of the elected district attorney to remain as close as possible to that DA no matter what he does.'

"'Justice is not done in any criminal prosecution when a DA who assumes the role of chief factual investigator and does not bother to talk with the chief prosecuting witness about her allegations to assess her credibility, and instead lets forth a stream of pure speculation about the "facts" of the case to conform to the evolving investigation: speculation that, in fact, contradicts materials in his own case file and sworn statements made by his own investigators and assistants in the investigation. Those actions are hardly a prosecutor's "right" or "job" as defined by his oath.'

"'Sutton also takes exception to the people from around the country who have taken an interest in this case, who include the parents of the scores of young men whose lives have been unalterably affected by the ongoing miscarriage of justice in this case. These people are victims of Nifong's actions in the same way that the people of Durham are, and their interest in this case is just as real and proper.'

"'This case is not business as usual in the criminal justice system. That much is clear to any objective viewer.'

"'It is an important case to all of the people of this state who are the possible subjects of criminal investigation and who believe that the charging authorities, whom they trust to uphold their oath, will see that justice is done.'

"'But it must be noted that Nifong's only "right" and "job" as a prosecutor in this or any other case is to satisfy his oath to see that justice is done. He has no right to take over the role of lead investigator from the police and then refuse to view exculpatory evidence, or to order an illegal and improper photo lineup procedure, or to make factually baseless public statements that pander to race, gender and class during an election cycle.'

"Mr. Cheshire's wordsstrike me assad or disappointed, not angry.'"

Also:

"Mr. Malaklou: 'Not only was Cheshire's guest column unprofessional, but it was also completely insensitive to the multitudes of women who have been victim, in one way or another, to the lacrosse players' actions.'

"Mr. Cheshire is a professional. Apparently Ms. Malaklou does not recognize a criminal defense lawyer doing his job professionally. Nor, apparently, does she realize that Mr. Cheshire's letter was written as a response to a controversial comment by another attorney who previously had represented his client David Evans, NOT as a history of 'the lacrosse players' actions' (which Ms. Malakloumeanly maligned with the broadest of brushes)."

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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Copyright 2006 by Michael J. Gaynor
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